[Redacted], Jefferey K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Sep 14, 2022

Appeal No. 2022003603 (E.E.O.C. Sep. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jefferey K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003603 Agency No. 4E-956-0038-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 18, 2022, dismissing his complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant worked as a Carrier at the Agency’s Colonial Post Office in Sacramento, California. On January 24, 2022, Complainant initiated EEO contact. Informal efforts to resolve his concerns were unsuccessful. On April 22, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), sex (male), and color (unspecified) when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022003603 2 1. On May 11, 2020, he was placed on Emergency Placement in an off-duty non-pay status and subsequently, on May 21, 2020, he was issued a Notice of Removal for Failure to Properly Handle Mail/Delay of Mail/Failure to Follow Instructions. 2. On December 1, 2021, he became aware management did not resolve/settle his grievance to return him back to work which is related to his Notice of Removal dated May 21, 2020. Therefore, the grievance was appealed to the next level of the grievance process. On May 18, 2022, the Agency dismissed claim 1 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant’s initial EEO Counselor contact was January 24, 2022, which it found to be well beyond the 45-day limitation period. According to the Agency, Complainant had, or should have had, a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his initial contact with the EEO Counselor. The Agency found claim 2 is a collateral attack on the negotiated grievance process. The Agency stated that Complainant should have raised his allegations through the negotiated grievance process and not through the EEO complaint process. The instant appeal followed. ANALYSIS AND FINDINGS Claim 1: Untimely EEO Counselor contact EEOC Regulation 20 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five days of the effective date of the action. The Agency properly dismissed claim 1 for untimely EEO Counselor contact. The alleged discriminatory events occurred in May 11 and 21, 2020. However, Complainant did not initiate contact with an EEO Counselor until January 24, 2022, well beyond the 45-days limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding his claims more than 45 days prior to his initial contact with an EEO Counselor. On appeal, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limits for initiating EEO counselor contact. The Agency provided a copy of a management official’s affidavit, dated May 16, 2022, from Complainant’s facility in which she stated that EEO Poster 72 was on displayed on the employee bulletin boards located in the break rooms and by the employee time clocks. She further stated that the poster advises employees of the time requirements for timely EEO Counselor contact. As such, it appears Complainant had notice of the relevant time limitations. 2022003603 3 Therefore, we find that the Agency’s dismissal of claim 1, pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact was proper. Claim 2: Failure to State a Claim An employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 24, 1993). The proper forum Complainant to have raised his challenges to actions which occurred during the negotiated grievance process is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the negotiated grievance process. The Agency properly dismissed claim 2 for failure to state a claim. CONCLUSION The Agency’s final decision dismissing Complainant’s formal complaint for the reasons stated herein is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2022003603 4 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2022003603 5 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 14, 2022 Date